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Citimortgage v Williams w

Citimortgage v Williams w

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Published by: DinSFLA on Jul 12, 2011
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[*1] Decided on July 6, 2011
Supreme Court, Kings County
 1946/09Plaintiff Peter T. Roach and AssociatesJericho NYK & L Gates LLP NY NYDefendantAuciello Law Group, PCBrooklyn NYArthur M. Schack, J.The Court, on August 23, 2010, in this foreclosure action, granted to plaintiff,CITIFINANCIAL MORTGAGE COMPANY, INC. (CITI), an order of reference for the premises located at 1170 Halsey Street, Brooklyn, New York (Block 3411, Lot 20, County
Citifinancial Mtge. Co., Inc. v Williams
2011 NY Slip Op 51240(U)Decided on July 6, 2011Supreme Court, Kings CountySchack, J.Published by New York State Law Reporting Bureaupursuant to Judiciary Law§ 431.This opinion is uncorrected and will not be published in the printed OfficialReports. 
Citifinancial Mortgage Company, Inc., Plaintiff,againstNigel Williams, et al., Defendants.
Page 1 of 4Citifinancial Mtge. Co., Inc. v Williams (2011 NY Slip Op 51240(U))7/11/2011http://www.nycourts.gov/reporter/3dseries/2011/2011_51240.htm
of Kings). Then, on May 20, 2011, plaintiff CITI moved to vacate the August 23, 2010order of reference. The motion is scheduled for oral argument on August 15,2011.Yesterday, July 5, 2011, the Court received from plaintiff's co-counsel, Peter T. Roach& Associates, P.C., a fax of [*2]a letter, dated July 5, 2011, addressed to my chambers andto the attention of my principal law clerk, Ronald D. Bratt, Esq. The letter states:An application to vacate the Order of Reference AppointingReferee to Compute was inadvertently submitted to his Court.Please take this letter as our formal request to vacate the Order of Reference Appointing Referee to Compute, without prejudice.A motion to discontinue the action and cancel the notice of  pendency of record will be submitted shortly. Thank you for your courtesies. No reason is given by plaintiff's co-counsel for the request to vacate the August 23, 2010order of reference.Moreover, despite the thanks "for your courtesies" at the bottom of the letter addressedto my chambers and to the attention of Mr. Bratt, the letter discourteously states, on theletterhead of Peter T. Roach & Associates, P.C., in boldface and capital letters, "THISCOMMUNICATION IS FROM A DEBT COLLECTOR AND IS AN ATTEMPT TOCOLLECT A DEBT. ANY INFORMATION OBTAINED WILL BE USED FOR THATPURPOSE." The Court would like to know what debt either Mr. Bratt or myself owes toPeter T. Roach & Associates, P.C. or CITI? Mr. Bratt and I do not owe any debt to Peter T.Roach & Associates, P.C. or CITI. This boldfaced and capitalized statement borders uponfrivolous conduct, in violation of 22 NYCRR § 130-1.1. Was it made to cause annoyance or alarm to the Court or Mr. Bratt? Was it made to waste judicial resources? Rather thananswer the above rhetorical questions, counsel for plaintiff is directed never to place such afoolish statement in a letter to this Court. If this occurs again, the firm of Peter T. Roach &Associates, P.C. is on notice that this Court will have the firm appear to explain why thefirm should not be sanctioned for frivolous conduct.With respect to the request of plaintiff's counsel to vacate the order of reference, theCourt grants the request to vacate the August 23, 2010 order of reference. Further, the Court,to prevent the waste of judicial resources, for procedural reasons and not upon the merits,dismisses the instant foreclosure action with prejudice.
Real Property Actions and Proceedings Law (RPAPL) § 1321 allows the Court in aforeclosure action, upon the default of the defendant or defendant's admission of mortgage payment arrears, to appoint a referee "to compute the amount due to the plaintiff." In the
Page 2 of 4Citifinancial Mtge. Co., Inc. v Williams (2011 NY Slip Op 51240(U))7/11/2011http://www.nycourts.gov/reporter/3dseries/2011/2011_51240.htm
instant action, the Court appointed a referee to compute. Subsequently, plaintiff CITIrequested that the Court vacate the order of reference, without prejudice. The Court grants plaintiff's request to vacate the order of reference. However, to allow the instant action tocontinue without seeking the ultimate purpose of a foreclosure action, to obtain a judgmentof foreclosure and sale, without any valid reason, is a mockery and waste of judicialresources. Continuing the instant action without moving for a judgment of foreclosure andsale is the judicial equivalent of a "timeout," and granting a "timeout" to plaintiff CITI tomove to discontinue without prejudice is a waste of judicial resources. Therefore, the instantaction, for these procedural reasons, is dismissed with prejudice.Moreover, the dismissal of the instant foreclosure action requires the cancellation of the[*3]notice of pendency. CPLR § 6501 provides that the filing of a notice of pendencyagainst a property is to give constructive notice to any purchaser of real property or encumbrancer against real property of an action that "would affect the title to, or the possession, use or enjoyment of real property, except in a summary proceeding brought torecover the possession of real property." The Court of Appeals, in
5308 Realty Corp. v O &Y Equity Corp.
(64 NY2d 313, 319 [1984]), commented that "[t]he purpose of the doctrinewas to assure that a court retained its ability to effect justice by preserving its power over the property, regardless of whether a purchaser had any notice of the pending suit," and, at 320,that "the statutory scheme permits a party to effectively retard the alienability of real property without any prior judicial review."CPLR § 6514 (a) provides for the mandatory cancellation of a notice of pendency by:
The Court 
,upon motion of any person aggrieved and upon suchnotice as it may require,
 shall direct any county clerk to cancel a notice of pendency,
if service of a summons has not been completedwithin the time limited by section 6512; or 
if the action has been
settled, discontinued or 
; or if the time to appeal from a final judgment against the plaintiff has expired; or if enforcement of afinal judgment against the plaintiff has not been stayed pursuantto section 551. [
emphasis added 
]The plain meaning of the word "abated," as used in CPLR § 6514 (a) is the ending of an action. "Abatement" is defined as "the act of eliminating or nullifying." (Black's LawDictionary 3 [7th ed 1999]). "An action which has been abated is dead, and any further enforcement of the cause of action requires the bringing of a new action, provided that acause of action remains (2A Carmody-Wait 2d § 11.1)." (
 Nastasi v Nastasi
, 26 AD3d 32, 40[2d Dept 2005]). Further,
at 36, held that the "[c]ancellation of a notice of pendencycan be granted in the exercise of the inherent power of the court where its filing fails tocomply with CPLR § 6501 (
 see 5303 Realty Corp. v O & Y Equity Corp., supra
at 320-321;
Page 3 of 4Citifinancial Mtge. Co., Inc. v Williams (2011 NY Slip Op 51240(U))7/11/2011http://www.nycourts.gov/reporter/3dseries/2011/2011_51240.htm

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